Orissa HC sets aside 34-year-old judgment convicting two persons under Sec. 304 Part II & Sec. 324 of Indian Penal Code. The names of the accused were Nityananda Behera and Madhab Behera.
Facts of the Case
In this case, the decision was taken in the village meeting in the presence of five shareholders. It was decided that the Jamun tree would be cut and the trunk utilized for the making of doors and windows of the village high school. The tree was thereafter cut by the villagers. The appellants took a cartload of branches of the tree in the morning to their house and again in the afternoon. The deceased arrived at the spot with a cart to take the branches and found the appellants loading the branches in their cart. They also tried to take the branches but the appellants prevented them.
A fight broke out between the parties and the deceased was assaulted by the Appellant No. 1 Nityananda Behera and Appellant No. 2 Madhab Behera. Appellant No. 1 Nityananda Behera also sustained an injury during the course of the brawl. Nityananda Behera was charged under Sec. 302 of the IPC on the accusation of committing the murder of Raghaba Behera on the 18th of February, 1986. Madhaba Behera was charged under Sec. 324 of the Indian Penal Code for voluntarily causing hurt to Rohita Behera at the same place and time.
The petitioner’s counsel submitted that Madhaba Behera cannot have exceeded his right of private defence of property in causing two simple injuries. They contended that Appellant No. 1 Nityananda Behera also sustained an injury during the incident. No one from the prosecution side had tried to lodge an FIR on the date of the occurrence. It was lodged twenty-two hours after the incident.
Rohita Behera, the informant in the case, stated that Appellant No. 1 was standing on the backside of the deceased while delivering the blow on his head with the yoke. The counsel submitted that if the evidence of the doctor is considered, it would appear that if a heavy weapon like a yoke would have been used, it would have caused extensive injury on the head of the deceased and a fracture would be inevitable.
After fighting the legal battle for more than thirty-four years, the appellants have won the case. The judgment and order of conviction of Appellant No. 1 Nityananda Behera under Sec. 304 Part II of the IPC and that of the Appellant No. 2 Madhab Behera under Sec. 324 of the IPC and the sentence passed under is not sustainable in the eyes of law. The appellants are acquitted of all charges. The appellants are on bail by the orders of this Court. They are discharged from liability of their bail bonds. The personal bonds and the surety bonds stand cancelled.
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